PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
ousness of the offence, and any exceedance thereof results in the mandatory release of the defendant. 4.3 Public or State Funding Public funding is available through the legal aid sys - tem ( apoio judiciário ), which is governed by Law No 34/2004 of 29 July. This regime is available to individu - als who do not have sufficient financial means, with eligibility determined primarily on the basis of a means test assessing income and assets. In criminal proceedings, the right to defence is strong - ly protected, and legal aid may include the appoint - ment of a lawyer and exemption from or reduction of court fees. Depending on the applicant’s financial situation, a contribution may be required, including payment in instalments. 4.4 Venue and Specialisation Portugal does not have fully specialised courts dedi - cated exclusively to financial crime. The competent court is determined by law, mainly based on the loca - tion and seriousness of the offence, and defendants do not have the right to choose the venue. 4.5 Trial by Jury Trial by jury in criminal proceedings in Portugal is exceptional and, in practice, very rare. It is not auto - matic and depends on a formal request by the defend - ant, the assistant (victim) or the Public Prosecutor, which must be submitted within the procedural dead - line following the investigation stage. Only where such a request is duly made will the case be heard by a mixed panel composed of three professional judges and four jurors, together with substitute jurors. Jurors are selected at random from lists of citizens. This is followed by a specific jury selection hearing, during which the selected individuals are assessed to confirm their eligibility and impartiality, and may be challenged or excused in accordance with the appli - cable legal provisions. Once constituted, the jury participates in the trial alongside the professional judges, contributing to the determination of both factual and legal issues. Not - withstanding this, the presiding judge retains a cen -
tral role, particularly in directing the proceedings and ensuring compliance with procedural rules. There are currently no significant reforms specifical - ly addressing the use of jury trials in financial crime cases. 5. Corporate Liability, Compliance and Defences 5.1 Corporate and Individual Liability Portuguese law allows for the concurrent prosecution of companies and individuals in relation to the same underlying conduct. However, corporate criminal lia - bility is not general: a legal person may only be held criminally liable for the offences expressly provided for in Article 11 of the Penal Code. Under this provision, companies may be held liable only in relation to a closed list of offences, and pro - vided that such offences are committed in their name and in their interest by individuals in a leading position (such as directors or managers), or by persons acting under their authority where there has been a failure of supervision or control. Accordingly, even where individual criminal liability is established, a company will only be prosecuted if the relevant offence falls within the scope of Article 11 and the applicable attribution criteria are satisfied. Within corporate groups, liability does not automati - cally extend to parent companies. Rather, it must be established on the basis of their own conduct, namely where they have exercised effective control, acted through their representatives or derived a benefit from the unlawful conduct in a manner that fulfils the requirements set out in Article 11. Therefore, a par - ent company may be criminally liable if the relevant conduct is carried out in the name of or on behalf of the parent and in its interest, regardless of its subse - quent merger (in which case the entity resulting from or continuing in the merger is liable for the crimes pre - viously attributable to the merged entity) or demerger (in which the predecessor entity remains liable for the crimes committed).
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